NACo Endangered Species Act Alert

Yesterday, NACo joined its long-standing partners in the National Endangered Species Act Reform Coalition (NESARC) in filing comments with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”) which oppose proposed changes to the implementing regulations under the Endangered Species Act (ESA) for the process of designating critical habitat and the scope of the “adverse modification” inquiry under section 7 inter-agency consultations.

In describing the purpose of the proposed rule to modify existing critical habitat procedures, the Services state that the amendments “…are intended to add clarity for the public, clarify expectations regarding critical habitat and provide for a credible, predictable, and simplified critical habitat designation process.” However, these proposed amendments step beyond mere clarifications and simplification of the process. Instead, these changes attempt a broad re-orientation of the scope and purpose of a critical habitat designation—that steps beyond the clear boundaries intended by Congress and set forth within the ESA.

With respect to “adverse modification,” our coalition has long sought action by the Services to remove the uncertainty regarding the definition resulting from court decisions invalidating the existing regulatory definition. The Coalition has encouraged the Services to retain the current regulatory definition of “adverse modification” with only those minor modifications and additional justification necessary to address the courts’ concerns. The proposed rule fails to meet these basic principles.